REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LEGISLATION - interpretation or application of statutory provision

Consideration of application for review under section 97P Planning and Environment Act 1987 - certificates of compliance under part 4A Planning and Environment Act 1987 - declarations under sections 149A & 149B Planning and Environment Act 1987 to establish existing use rights

The Planning and Environment Act 1987 offers various opportunities to establish existing use rights by way of application for a certificate of compliance, or application for a declaration under sections 149A or 149B. The appropriateness of each procedure will depend on the circumstances of each case and the needs of the person making the application. However, there is nothing in the legislation that inhibits or should inhibit a person from selecting which procedure to adopt based on the complexity or contention of the subject matter.

Part 4A of the Act governing certificates of compliance introduced a comprehensive scheme into the Act to enable certificates to be issued stating whether an existing or proposed use or development complies with the planning scheme. The existence of such a comprehensive scheme means it should be the preferred means of establishing whether an existing or proposed use or development complies with the planning scheme, unless there is good reason for pursuing an alternative remedy. McDonald v Nillumbik SC, Studley Street Developments Pty Ltd v Yarra CC and Di Biase v Yarra Ranges SC not followed.

Part 4A of the Planning and Environment Act 1987 - certificates of compliance and declarations as means of establishing existing use rights - no basis to distinguish between remedies on basis of difficulty or complexity - certificate of compliance is preferred remedy - McDonald v Nillumbik SC, Studley Street Developments Pty Ltd v Yarra CC and Di Biase v Yarra Ranges SC not followed

Inglese v Yarra Ranges SC (Includes Summary) (Red Dot) [2014] VCAT 396

1. Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the proceeding is amended from an application for declaration under section 149B of the Planning and Environment Act 1987 to an application for review under section 97P of the Act.
2. The proceeding is listed for hearing on 1 July 2014 at 10.00am before a legal member, with a time estimate of half a day.
3. By not later than 20 business days before the date listed for the hearing, the applicant must file with the Tribunal and serve on all other parties a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which the applicant intends to rely at the hearing not yet filed and served.
4. By not later than 10 business days before the date listed for the hearing, the other parties must file with the Tribunal and serve on the applicant and each other party a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which they intend to rely at the hearing not yet filed and served.

Mr Peter Merrigan, town planner, of Millar & Merrigan Pty Ltd

1. This proceeding is an application for declaration under section 149B of the Planning and Environment Act 1987. The declaration being sought is not explicitly stated in the application, but essentially relates to whether the subject land has been used for a period of over 15 years as a contractors depot and accordingly, whether the land has existing use rights for this purpose under clause 63.11 of the Yarra Ranges Planning Scheme.
2. The purpose of the practice day hearing was to consider whether the application should be amended to an application under section 97P of the Planning and Environment Act 1987.

1. Part 4A of the Planning and Environment Act 1987 deals with certificates of compliance. Section 97N enables any person to apply to the responsible authority for a certificate stating that an existing use or development of land comprised with the requirements of the planning scheme at the date of the certificate. Under section 97O the responsible authority may issue a certificate of compliance or refuse to issue the certificate on grounds set out in sub-sections (4) or (5). The relevant sub-section in this particular case is sub-section (4), which provides as follows[1]:

(4) The responsible authority must refuse to issue a certificate applied for under section 97N(1)(a) if the use or development or any part of the use or development would require a permit or is prohibited under the planning scheme.

1. An applicant for a certificate may apply to the Tribunal for review of a decision by the responsible authority to refuse to issue a certificate of compliance or failure to issue a certificate under section 97P.
2. In the present case, the applicants made an application to the council for a certificate of compliance under section 97N and the council refused to grant a certificate of compliance on the basis that:

The evidence/documentation supplied does not prove that a "contractors Depot" has been running on the land for more than 15 years.

1. Instead of lodging an application for review under section 97P, the applicants have applied for a declaration under section 149B of the Act. Section 149B provides as follows:

(1) A person may apply to the Tribunal for a declaration concerning -

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

(2) On an application under subsection (1), the Tribunal may make any declaration it thinks appropriate in the circumstances.

1. The Tribunal also has a power under section 149A of the Act to make declarations for the determination of a matter relating to existing use rights as follows:

149A Application by certain persons for declarations

(1) A specified person may apply to the Tribunal for the determination of a matter if -

(a) the matter relates to the interpretation of the planning scheme or a permit in relation to land or a particular use or development of land;

(b) the matter relates to whether section 6(3) applies to a particular use or development of land; or

(c) the matter relates to a provision of a planning scheme or amendment permitting the continuation of a use lawfully existing before the coming into operation of the planning scheme or amendment, or permitting the use of buildings or works for a purpose for which they were lawfully erected or carried out before the coming into operation of the planning scheme or amendment.

1. The applicants' reason for making an application for declaration under section 149B, rather than applying for a review of the council's refusal under section 97P, is based on comments made by Member Martin in Di Biase v Yarra Ranges SC[2]. This proceeding was an application for review under section 97P of the failure of the responsible authority to issue a certificate of compliance. The Tribunal affirmed the council's refusal and refused to issue a certificate. However, in the course of his reasons, Member Martin made the following comments:

[7] On the one hand, there is previous Tribunal caselaw that 'existing use rights' disputes of this type should be resolved by way of an Application for Declaration to the Tribunal, rather than by way of a contested Section 97P application. See for example McDonald Mary v Nillumbik SC [2000] VCAT 772 and Logie HC&CM v Campaspe SC [1999] VCAT 431. On a very strict view, the Tribunal in theory could refuse this Application on this basis alone ie that this Application has been brought in the wrong manner. However in all the circumstances I consider that it would be overly harsh to take this course of action, particularly when Council has not seriously challenged this procedural point in the lead up to the hearing eg through a strike out application.

[8] However for future reference, I endorse that the Tribunal expects these types of disputes to be dealt with by way of an Application for Declaration.

1. In the case of McDonald v Nillumbik SC, Senior Member Byard expressed the view that certificates of compliance are intended for clear cut cases where the proposition to be certified could be ascertained by reference to planning scheme provisions. He considered they were intended to provide a simple, quick and cheap means of obtaining a document certifying that a particular proposal or existing use or development can be carried out without a permit. They were not intended to apply to situations where there are difficult or contentious issues in relation to existing use rights.
2. Senior Member Byard has repeated these views in other cases[3], most recently in the case of Studley Street Developments Pty Ltd v Yarra CC[4]. In that case, there were two applications, one for a declaration under section 149A and one to review the decision of the responsible authority to refuse to grant a certificate of compliance under section 97P. The decision of the responsible authority to refuse to grant a certificate of compliance was affirmed and the application for declaration was refused. However, under the heading of 'Post-script', Senior Member Byard took the opportunity to express his views about certificates of compliance at some length.
3. With respect, I disagree with these views of both Senior Member Byard and Member Martin. There is nothing in the legislation to support a distinction between certificates of compliance and declarations based on the proposition that certificates of compliance are intended for use in simple, clear cut cases and that declarations are intended for use in more complex cases. There is no such constraint, express or implied, found within Part 4A of the Act or in sections 149A or 149B.
4. Existing use rights are established under the planning scheme by various means set out in clause 63.01. They include if proof of continuous use for 15 years is established under clause 63.11. It is relevant to note that under clause 63.11 there is a specific reference to an application for a certificate of compliance under section 97N of the Act. Clause 63.11 provides as follows:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. In fact, there are various means by which existing use rights can be established. Each of them have a different purpose and are available to different people.

1. Any person may apply for a certificate of compliance. Such a certificate may be useful to a vendor of land or a prospective purchaser. It may also be useful to a person other than the developer who needs to rely on it, for example a financial institution lending on the security of the land. The reasons for introducing certificates of compliance into the planning scheme were canvassed in the Second Reading Speech for the Planning and Environment (Amendment) Bill in 1993, which introduced these provisions.
2. The intention was to establish a means of providing certainty about what was permitted under a planning scheme in respect of proposed uses or development or existing uses or development.
3. There are several things to be noted about certificates of compliance.
4. A certificate of compliance is a document issued by a responsible authority in accordance with Part 4A of the Planning and Environment Act 1987. This provides for two types of certificate:
   • A certificate stating that an existing use or development of land complies with the requirements of the planning scheme
   • A certificate stating that a proposed use or development (or part of a proposed use or development) would comply with the requirements of the planning scheme.
5. The Act requires that a certificate be in the prescribed form and include prescribed information[5]. Different forms are prescribed. The appropriate form depends on whether the certificate relates to an established use or development[6] or a proposed use or development[7].
6. With respect to a certificate for an existing use or development (Form 14), the certificate must state the use and development carried out and existing on the land. This may include reference to any plans or documents forming part of the application (for the certificate of compliance) and endorsed by the responsible authority. The certificate states that, "the use or development existing on the land and referred to in this Certificate complies with the requirements of the planning scheme at the date of this Certificate". At the foot of the certificate is the following notation:

A Certificate is a statement about the effect of the planning scheme on the use or development on the land on the day it was issued.

1. Section 97R of the Act requires the responsible authority to include in the Register kept under section 49 details of all applications for certificates under Part 4A; and all decisions and determinations relating to those certificates. The Register referred to in section 49 is a Register of all applications for permits and all decisions and determinations relating to permits.
2. Section 97Q of the Act provides that any person may request the Tribunal to cancel or amend a certificate of compliance issued under Part 4A if the person believes that the person has been adversely affected by a material misstatement or concealment of fact in relation to the application for the certificate or a material mistake in relation to the issue of the certificate.
3. In addition to the reference in clause 63.11 that the provisions of the clause apply to an application for a certificate of compliance under section 97N of the Act, a certificate of compliance is also referred to in section 6(2)(ke) of the Act.[8] Section 6(2)(ke) provides that a planning scheme may:

(ke) subject to subsection (3), specify what effect (if any) the planning scheme will have on a use or development of land for which a permit or certificate of compliance has been issued;

1. Despite the existence of section 6(2)(ke) and the comments in the second reading speech about a possible Statewide amendment to planning schemes that additional requirements which may be introduced into the scheme do not have to be complied with if the use or development commences within two years of the date of the certificate of compliance, I am not aware of any such planning scheme amendment having been made.
2. Nevertheless, it is apparent from the detailed provisions of Part 4A, the reference to certificates of compliance in clause 63.11, the existence of prescribed forms and the possibility of planning schemes including provisions of the type specified in section 6(2)(ke) that certificates of compliance were introduced into the Act with a very specific purpose in mind, which was to provide certainty about the effect of the planning scheme on an existing or proposed use or development on the day the certificate was issued.
3. The two situations where a certificate of compliance will most likely be sought in relation to an existing use or development are:
   • Where the use or development is as-of-right under the provisions of the planning scheme and no permit exists or needs to be issued to legitimise that use or development; and
   • Where the use has existing use rights pursuant to clause 63.01 of the scheme.
4. If the land has existing use rights, including rights established under clause 63.011, the use is not prohibited under the planning scheme. A new use for the same purpose may be prohibited under the zone provisions, but the existing use is not prohibited by virtue of clause 63.05, which provides that a use in Section 2 or 3 of a zone for which an existing use right is established may continue upon certain provisos.
5. For this reason, the requirement in section 97O(4) that a responsible authority must refuse to issue a certificate if the use or development would require a permit or is prohibited under the planning scheme, does not apply to existing use rights established under clause 63.01 because such existing use rights are not prohibited under the planning scheme.
6. There is nothing though in either the Act or clause 63 which explicitly or impliedly limits the grant of a certificate of compliance for an existing use, which has existing use rights, to a use that is obvious and clear-cut or suggests that it is not appropriate to apply for a certificate, or for one to be issued, in difficult, doubtful and contentious cases. It may well be that in difficult, doubtful and contentious cases a responsible authority may not be persuaded that an existing use right exists and may refuse to issue the certificate. But in such cases, the applicant for the certificate can apply to the Tribunal for review of that refusal. The Tribunal will then be required to determine the matter no matter how difficult, doubtful and contentious it may be. Having determined the matter, it may then direct that a certificate must not be issued or that the responsible authority must issue the certificate, and the responsible authority must comply with the directions of the Tribunal. If required, the Tribunal may make a declaration under section 124 of the Victorian Civil & Administrative Tribunal Act 1998 concerning any matter in a proceeding under section 97P.
7. It is not specified in the Act that a certificate of compliance is conclusive proof of the facts set out, as is the case with a planning certificate, and there is no right in any person acting on the basis of a certificate of compliance who suffers financial loss because of an error in the certificate to recover damages, as is the case with a planning certificate[9]. Nevertheless, whilst there may be some limitations on how a certificate of compliance may be used, that is not a reason for being critical of certificates of compliance, as Senior Member Byard is in Studley Street Developments Pty Ltd v Yarra CC, or for suggesting that in order to establish existing use rights the preferable course of action is to apply for a declaration from the Tribunal.

1. The opportunity to identify whether existing use rights exist in respect of certain land also arises under sections 149A and 149B of the Act, in addition to applying for a certificate of compliance.
2. An application for declaration under section 149A can only be made by a specified person. A specified person is the owner, user or developer of the land directly affected by the matter; or a specified body as defined in section 148; or if the matter affects Crown land, the occupier of the Crown land. Section 149A(1) clearly enables a specified person to apply for a declaration to establish if a particular use or development of land is prohibited; if it requires a permit; or if it has existing use rights. Such a declaration can be applied for either in obvious and clear-cut cases or in difficult, doubtful and contentious cases.
3. A declaration may be applied for in various circumstances. For example, if a responsible authority is threatening enforcement proceedings against an owner or occupier of land, such a person may wish to obtain a declaration that the land has existing use rights.
4. However, whatever the circumstances, a declaration has its limitations just as a certificate of compliance does. A declaration is an order that declares the nature of the rights of parties with respect to the particular matter in dispute, but it has no mandatory or prohibitory force and is not a requirement addressed to anybody to do anything. The power to make a declaration is discretionary and will not be made if there is no utility in doing so. The matters, which guide the Tribunal in deciding whether to make a declaration, include the following:
   • There must be a dispute in existence;
   • The jurisdiction is not available if the issue is purely theoretical;
   • The dispute must not only be in existence but must be attached to facts;
   • The dispute must be real, not hypothetical;
   • The dispute must be of practical importance;
   • The making of a declaration must be of practical use.
5. Thus in Nightingale Vin v Latrobe CC[10] Deputy President Dwyer directed the responsible authority to issue a certificate of compliance but dismissed a separate application for declaration because he saw no utility in granting a separate declaration where appropriate relief could be granted through some other appropriate form of proceeding.
6. Whilst applications for declarations under section 149A can only be made by a specified person, there is no such restriction on an application for declaration under section 149B, which can be made by any person. In Wellington v Surf Coast Shire Council & Ors[11] the Tribunal held that third persons could apply for a declaration regarding the existence of existing use rights or otherwise in respect of land they did not own or occupy.
7. Applications for declarations under section 149B are subject to the same constraints on when they should be made as declarations under section 149A. They will be an appropriate remedy in some cases, but generally if there is a more specific remedy, the Tribunal will not make a declaration. Thus in Nightingale Vin v Latrobe CC, Deputy President Dwyer said:

[28] The Tribunal will not commonly make a declaration where other equivalent relief is available through a different form of proceeding. As will be seen, I have decided the application under s 97P favourably to the applicant. I therefore see no utility in granting the declaration sought under s 149A, and that second application is dismissed.

1. There was an implicit acceptance by Deputy President Dwyer that the section 97P process was to be 'preferred' to a declaration process, which is contrary to the views expressed in McDonald v Nillumbik SC, Studley Street Developments Pty Ltd v Yarra CC and Di Biase v Yarra Ranges SC.
2. The same issue about whether a declaration could or should be made in circumstances where other relief is available was canvassed in Phillips v Greater Shepparton CC[12], although in the context of an application to cancel or amend permit under section 87 of the Planning and Environment Act 1987. The Tribunal acknowledged that it had jurisdiction to make a declaration in circumstances where there was an alternative remedy available. However, because a declaration is discretionary, the existence of an alternate remedy will be an important factor that may influence whether discretion to make a declaration should be exercised[13].

1. The Planning and Environment Act 1987 offers various opportunities to establish existing use rights by way of application for a certificate of compliance, or application for a declaration under sections 149A or 149B. The appropriateness of each procedure will depend on the circumstances of each case and the needs of the person making the application. However, there is nothing in the legislation that inhibits or should inhibit a person from selecting which procedure to adopt based on the complexity or contention of the subject matter.
2. Part 4A governing certificates of compliance introduced a comprehensive scheme into the Act to enable certificates to be issued stating whether an existing or proposed use or development complies with the planning scheme. The responsible authority will often have local knowledge of the history of use and compliance concerning land, which means it is best placed to administer the scheme, with the Tribunal only being involved if there is an application for review from the responsible authority's decision. The scheme provides the opportunity for the responsible authority to be involved from the outset of the process, rather than merely as a respondent to an application for declaration in the Tribunal's original jurisdiction.
3. Of course, the onus will rest with an applicant for a certificate to establish the existing use rights they claim and to this end, they will need to produce appropriate evidence. There is no onus on the council to undertake investigative work to prove or disprove the claims made by applicants.
4. However, the existence of such a comprehensive scheme means it should be the preferred means of establishing whether an existing or proposed use or development complies with the planning scheme, unless there is good reason for pursuing an alternative remedy.
5. Applicants for certificates of compliance from responsible authorities whose applications are refused should not feel constrained in their ability to apply for a review under section 97P or feel that they must make an application for declaration additionally or alternatively. Indeed, the existence of a specific remedy under section 97P is a factor that would favour this as a preferred remedy to an application for declaration.
6. In the present case, where the applicants applied for a certificate of compliance and the council refused to issue one, they have a right of review under section 97P. This is the most appropriate provision of the Act for them to proceed under. In order for a determination to be made about whether or not a certificate of compliance should be issued, this proceeding will therefore be amended to an application for review under section 97P.

[1] Section 97O(5) relates to a proposed use or development, which in turn relates to an application for a certificate of compliance under section 97N(1)(b).

[2] [2013] VCAT 1824

[3] For example, Egan v Boroondara CC [2004] VCAT 182

[4] [2013] VCAT 1762

[5] Regulation 45 Planning and Environment Regulations 2005

[6] Form 14 Planning and Environment Regulations 2005

[7] Form 15 Planning and Environment Regulations 2005

[8] This provision was introduced into the Act by clause 4 of the Planning and Environment (Amendment) Act 1993. Clause 4, which also inserted sub-paragraphs (kc) and (kd) of section 6(2) of the Act, was referred to in the second reading speech of the Planning and Environment (Amendment) Bill 1993 in the context of addressing certificates of compliance.

[9] Section 200 Planning and Environment Act 1987

[10] [2009] VCAT 1676

[11] [2011] VCAT 2317

[12] [2005] VCAT 653

[13] [2005] VCAT 653 at [109]. See also Wellington v Surf Coast Shire Council & Ors [2011] VCAT 2317 at [24] - [25]